Here We Go Again: Another Secret Government Program Chips Away at the Fourth Amendment

Fourth Amendment Concerns/Administrative Subpoenas

The Obama administration has acknowledged the existence of the program but argues that it poses no new privacy issues. In support, the administration points to the fact that (1) records are kept and stored by AT&T, and (2) that a subpoena is needed in order to gain access to the records.[9] However, the administration’s argument is quite misleading.

First, although AT&T stores the records, the administration’s joint participation with AT&T to store records and embed AT&T employees alongside the DEA personnel raises serious state action concerns.[10] The Supreme Court’s decision in Lugar v. Edmondson Oil made it clear that “a private party’s joint participation with the [government] in the seizure of disputed property is sufficient to characterize that party as a ‘state actor’.”[11] More state action concerns arise because AT&T has no independent motive for the seizing, searching, and prolonged storing of CDRs. Instead, the administration incentivizes AT&T by paying for its compliance. [12] Because AT&T is a joint participant in the program, the administration’s argument – that no new privacy issues are implicated because AT&T is storing the data – is inaccurate.

Second, law enforcement can gain access to Hemisphere’s database using only an administrative subpoena.  The use of administrative subpoenas in criminal investigations bypasses the Fourth Amendment’s probable cause requirement – a requirement that protects the privacy rights of both criminal suspects and innocent persons.[13] Traditionally, law enforcement agencies have to obtain a search warrant or a grand jury subpoena in order to obtain private information from a third party.[14] With both a search warrant and a grand jury subpoena, there is an independent review process.[15] But, in the case of administrative subpoenas, a single federal officer need only sign a single piece of paper that lists the information requested.[16] Despite reports from the Justice Department’s Inspector General that administrative subpoena power has been routinely abused, hundreds of thousands of them are issued annually.[17]

The standard for issuing an administrative subpoena is easy to satisfy and only requires that “the inquiry is within the authority of the agency, the demand is not too indefinite, and the information sought is reasonably relevant [to the investigation].”[18] To ensure that law enforcement agencies comply with the lax “reasonableness” standard, the third party that is served the subpoena can challenge the subpoena and have it reviewed by a court.[19] In practice, however, there is no incentive for the subpoenaed third party to challenge the administrative subpoena. First, the third party would face a high burden of proof and would incur substantial litigation costs.[20] Second, there are no consequences for a third party that complies with an unreasonable subpoena. In the particular case of Hemisphere, considering that AT&T is working alongside the DEA and the government is paying for both the embedded employees and the program itself, it would be even less likely that AT&T would challenge unreasonable subpoenas. Therefore, there is no practical safeguard to protect Americans’ call records from unreasonable searches.

Sacrificing Privacy to Fight the War on Drugs

The bigger question is whether catching more drug dealers using Hemisphere justifies the erosion of Fourth Amendment freedoms. The government’s NSA program was justified in part by focusing on foreign targets for national security purposes. By doing so, the government could prevent the death of its citizens, at home or abroad, from potential terrorist attacks. In the case of the Hemisphere program, the focus is on American citizens in an effort to fight the infamous war on drugs.

The war on drugs has already led to new interpretations of the Fourth Amendment that stretch the limits of the Constitution.[21] Forty-two years and over one trillion dollars later, the United States is no closer to winning the war on drugs.  Changes in penalties and law enforcement tactics have not had a significant effect on drug use,[22] and the multi-million dollar Hemisphere project has not changed the outcome during the six years it has been active.[23] Hemisphere has only succeeded at eroding Fourth Amendment protections while bloating the federal budget.

Conclusion

The Hemisphere program is yet another governmental overreach that infringes on citizens’ Fourth Amendment freedoms. By allowing the warrantless search of CDRs, the DEA is able to search the private data of citizens without a practical form of judicial review. By doing so, the DEA can glean sensitive information, such as whether someone has called the domestic violence or suicide hotline, who are the person’s closest associates, and where the person was located during their conversation. Although searching CDRs may be compelling for national security purposes, Hemisphere’s use of the information in the war on drugs is neither compelling nor effective enough to justify its constitutional shortcomings.